EXHIBIT 4.1
AMENDMENT No. 6 dated as of February 1, 2000, to the
Pooling and Servicing Agreement dated as of June 1, 1993,
between PROVIDIAN NATIONAL BANK (formerly known as First
Deposit National Bank), a national banking association, as
Seller and Servicer, and BANKERS TRUST COMPANY, a New York
banking corporation, as Trustee.
WHEREAS the Seller, the Servicer and the Trustee are parties to the Pooling
and Servicing Agreement dated as of June 1, 1993, as amended by AMENDMENT No. 1
dated as of May 1, 1994, AMENDMENT No. 2 dated as of June 1, 1995, AMENDMENT No.
3 dated as of March 1, 1997, AMENDMENT No. 4 dated as of June 1, 1998, AMENDMENT
No. 5 dated as of August 1, 1998, and as supplemented by SUPPLEMENTAL AGREEMENT
No. 1 dated as of January 1, 1998 (as so amended and supplemented, the
"Agreement"); and
WHEREAS the Seller, the Servicer and the Trustee now wish to amend the
Agreement as set forth herein;
NOW, THEREFORE, the Seller, the Servicer and the Trustee hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms Not Defined Herein. All capitalized terms used
herein that are not defined herein shall have the meaning ascribed to them in
the Agreement.
ARTICLE II
AMENDMENTS TO AGREEMENT
SECTION 2.01. Amendments to Section 1.01 of the Agreement. Section 1.01 of
the Agreement is hereby amended as follows:
(a) In the definition of the term "Eligible Receivable", the word "and" at
the end of clause (j) is deleted, the period at the end of clause (k) is
replaced by a semicolon and the following clause (l) is added at the end of such
definition:
(l) which, if arising under an Account which was not originated by a
Seller or an Affiliate of a Seller, will not be designated as an Additional
Account unless the Rating Agency Condition shall have been satisfied.
(b) The definition of the term "Finance Charge Receivables" is amended and
restated as follows:
"Finance Charge Receivables" shall mean, with respect to any Monthly
Period, all amounts billed to the Obligors on any Account at the beginning
of such Monthly Period and in respect of (i) Periodic Finance Charges, (ii)
Returned Cash Advance Check Fees, (iii) Late Fees, (iv) Overlimit Fees, (v)
Returned Payment Check Fees and (vi) all other fees and charges (excluding
Principal Receivables). Collections of Finance Charge Receivables, with
respect to any Monthly Period, shall include (i) a portion, determined
pursuant to Section 2.07(i), of the Interchange paid to the Sellers through
the MasterCard System, the VISA System and any other similar entity's or
organization's system relating to consumer revolving credit card accounts
with respect to such Monthly Period and (ii) any cash proceeds received by
the Sellers initially upon the sale or re-securitization by the Sellers of
Defaulted Receivables removed from the Trust to the extent such sale or
re-securitization is made pursuant to a Grouped Charge Off Disposition, and
excluding, in the case of any such Defaulted Receivables removed from the
Trust, (a) any amount received by the Sellers other than pursuant to a
Grouped Charge Off Disposition and (b) any amounts received by the Sellers
with respect to Defaulted Receivables removed from the Trust pursuant to a
Grouped Charge Off Disposition if such amounts do not constitute cash
proceeds received by the Sellers upon the initial sale or re-securitization
of such Defaulted Receivables.
(c) The definition of the term "Recoveries" is amended and restated as
follows:
"Recoveries" shall mean all amounts received by the Servicer with
respect to Receivables which have previously become Defaulted Receivables,
including Insurance Proceeds, but excluding any amounts received by the
Sellers with respect to Defaulted Receivables removed from the Trust
pursuant to a Grouped Charge Off Disposition.
SECTION 2.02. Amendment to Section 2.05(a) of the Agreement. (a) Section
2.05(a) of the Agreement is hereby amended by adding the following phrase at the
end of clause (i) thereof:
(and as soon as practicable after such discovery or receipt of notice such
Seller shall endeavor to exclude the aggregate of the Receivables arising
under the related Accounts from the aggregate of the Receivables in the
Trust)
SECTION 2.03. Amendments to Section 2.09 of the Agreement. (a) Section
2.09(c) of the Agreement is hereby amended and restated in its entirety as
follows:
(c) such Seller shall have represented and warranted on or prior to
the date that is 10 Business Days after the Removal Date that the list of
Removed Accounts delivered pursuant to paragraph (b) above was, as of the
Removal Notice Date, true and complete in all material respects;
(b) Section 2.09(d) of the Agreement is hereby amended and restated in its
entirety as follows:
(d) the Rating Agency Condition shall have been satisfied with respect
to such removal; provided, however, that if (i) the amount of Principal
Receivables outstanding in each such Removed Account is zero and (ii) each
such Removed Account (x) has had no activity in the previous 180 days, (y)
has been closed or (z) has had its Receivables charged off as
uncollectible, the Rating Agency Condition shall not apply;
Section 2.04. Amendments to Section 3.09(a) of the Agreement. The third and
fourth sentences of Section 3.09(a) are hereby amended and restated in their
entirety as follows:
Any adjustment required pursuant to either of the two preceding sentences
shall be made on or prior to the second Business Day after the day on which
such adjustment obligation arises. In the event that, following the
exclusion of such Principal Receivables from the calculation of the
Sellers' Participation Amount, the Sellers' Participation Amount would be a
negative number, not later than 12:00 noon, New York City time, on the
second Business Day following the day on which such adjustment obligation
arises, the Seller which transferred such Principal Receivables to the
Trust shall make a deposit into the Collection Account in immediately
available funds in an amount equal to the amount by which the Sellers'
Participation Amount would be below zero (up to the amount of such
Principal Receivables).
Section 2.05. Amendment to Section 4.02 of the Agreement. The last
paragraph of Section 4.02 is hereby amended and restated in its entirety as
follows:
Unless otherwise agreed by each Rating Agency, if at any time neither
FDNB nor any other Affiliate of FDNB is the Servicer, the Special Funding
Account will be moved from FDNB if then maintained there. Funds on deposit
in the Special Funding Account shall at the direction of the Servicer be
invested by the Trustee in Eligible Investments selected by the Servicer.
All such Eligible Investments shall be held by the Trustee for the benefit
of the Certificateholders. The Trustee shall maintain for the benefit of
the Certificateholders possession of the negotiable instruments or
securities, if any, evidencing such Eligible Investments. Funds on deposit
in the Special Funding Account on any Distribution Date will be invested in
Eligible Investments that will mature so that all funds will be available
at the close of business on the Transfer Date following such Monthly
Period. No Eligible Investment shall be disposed of prior to its maturity;
provided, however, that the Trustee may sell, liquidate or dispose of an
Eligible Investment before its maturity, if so directed by the Servicer,
the Servicer having reasonably determined that the interests of the
Investor Certificateholders may be adversely affected if such Eligible
Investment is held to its maturity. Unless directed by the Servicer, funds
deposited in the Special Funding Account on a Transfer Date with respect to
the next following Distribution Date are not required to be invested
overnight. On each Distribution Date, all interest and other investment
earnings (net of losses and investment expenses) on funds on deposit in the
Special Funding Account shall be treated as Collections of Finance Charge
Receivables with respect to the last day of the related Monthly Period
except as otherwise specified in the related Supplement. Funds on deposit
in the Special Funding Account will be withdrawn and paid to the Sellers on
any Distribution Date to the extent that the Sellers' Participation Amount
exceeds the Required Sellers' Participation Amount and the aggregate amount
of Principal Receivables in the Trust exceeds the Required Principal
Balance on such date (in each case determined after giving effect to any
Principal Receivables transferred to the Trust on such date); provided,
however, that, if an Accumulation Period, Scheduled Amortization Period or
Early Amortization Period has commenced and is continuing with respect to
one or more outstanding Series, any funds on deposit in the Special Funding
Account shall be treated as Shared Principal Collections and shall be
allocated and distributed in accordance with Section 4.04 and the terms of
each Supplement. For purposes of determining the availability of funds or
the balances in the Special Funding Account for any reason under this
Agreement, all investment earnings net of investment expenses and losses on
such funds shall be deemed not to be available or on deposit.
Section 2.06. Amendments to Section 4.03 of the Agreement. (a) Section
4.03(a) is hereby amended and restated in its entirety as follows:
(a) The Servicer will apply or will instruct the Trustee to apply all
funds on deposit in the Collection Account as described in this Article IV
and in each Supplement. Except as otherwise provided below, the Servicer
shall deposit Collections into the Collection Account no later than the
second Business Day following the Date of Processing of such Collections,
except for Collections consisting of Interchange, the Certificateholders'
allocable portion of which the Servicer shall deposit into the Collection
Account no later than 12:00 noon, New York City time, on the Transfer Date
and the Sellers' allocable portion of which the Sellers shall retain.
Subject to the express terms of any Supplement, but notwithstanding
anything else in this Agreement to the contrary, if and for so long as FDNB
remains the Servicer and (x) maintains a certificate of deposit rating of
A-1 or better by Standard & Poor's and P-1 by Moody's, or (y) FDNB has
provided to the Trustee a letter of credit covering collection risk of the
Servicer acceptable to the Rating Agency (as evidenced by a letter from the
Rating Agency), the Servicer need not make the daily deposits of
Collections into the Collection Account as provided in the preceding
sentence, but may make a single deposit in the Collection Account in
immediately available funds not later than 12:00 noon, New York City time,
on the Transfer Date, except for the Sellers' allocable portion of
Collections consisting of Interchange, which the Sellers shall retain.
Subject to the two provisos in Section 4.04 (assuming for purposes of
this Section 4.03(a) that such provisos applied on a daily basis), but
notwithstanding anything else in this Agreement to the contrary, with
respect to any Monthly Period when the Servicer is required to make
deposits of Collections pursuant to the second sentence of the preceding
paragraph, the Servicer will only be required to deposit Collections into
the Collection Account up to the sum of (x) the aggregate amount of
Collections required to be deposited into any Series Account (including
Monthly Interest (as defined in the related Supplement)) to be distributed
on the related Distribution Date or, without duplication, distributed on or
prior to the related Distribution Date to Investor Certificateholders or to
any Series Enhancer pursuant to the terms of any Supplement or Enhancement
Agreement, (y) the aggregate of the Investor Certificateholders' portions
of the daily Defaulted Amounts for such Monthly Period and (z) the
aggregate of the daily allocations of the Monthly Servicing Fees for such
Monthly Period for such Series (calculated pursuant to Section 3.02 of this
Agreement); provided, however, that (i) as long as FDNB is the Servicer
(A) with respect to any Series for which any Monthly Interest is determined
on a floating rate basis, at such time in each Monthly Period when each
floating rate that is used in calculating Monthly Interest for such Series
for such Monthly Period has been determined, to the extent that all funds
required under clause (x) above have been deposited in the Collection
Account with respect to such Series, then no additional funds will be
required to be deposited pursuant to clause (z) above and (B) with respect
to any Series for which Monthly Interest is determined on a fixed rate
basis, to the extent that all funds required under clause (x) above have
been deposited in the Collection Account with respect to such Series, then
no additional funds will be required to be deposited pursuant to clause (z)
above and (ii) if at any time prior to such Distribution Date the amount of
Collections deposited in the Collection Account exceeds the amount required
to be deposited, the Servicer will be permitted to withdraw the excess from
the Collection Account. With respect to any Monthly Period when the
Servicer is authorized to make deposits of Collections pursuant to the last
sentence of the preceding paragraph, the Servicer will only be required to
deposit Collections into the Collection Account up to the aggregate amount
of Collections required to be deposited into any Series Account or, without
duplication, distributed on or prior to the related Distribution Date to
Investor Certificateholders or to any Series Enhancer pursuant to the terms
of any Supplement or Enhancement Agreement, provided, however, that if at
any time prior to such Distribution Date the amount of Collections
deposited in the Collection Account exceeds the amount required to be
deposited, the Servicer will be permitted to withdraw the excess from the
Collection Account.
(b) Section 4.03(b) of the Agreement is hereby amended and restated in its
entirety as follows:
(b) With respect to each day during each Monthly Period, (i)
Collections of Finance Charge Receivables will be allocated to the
Certificateholders' Interest of a Series in an amount equal to the product
of the amount of such Collections and the Floating Allocation Percentage of
such Series with respect to such day during such Monthly Period, (ii)
Collections of Principal Receivables will be allocated to the
Certificateholders' Interest of such Series in an amount equal to the
product of the amount of such Collections and the Principal Allocation
Percentage of such Series with respect to such day during such Monthly
Period and (iii) Adjustment Payments and Transfer Deposit Amounts will be
treated as Shared Principal Collections and will be allocated and
distributed in accordance with Section 4.04 and the terms of each
Supplement. With respect to each Monthly Period, and notwithstanding the
foregoing, the Defaulted Amount and Interchange will be allocated to the
Certificateholders' Interest of a Series based on the Floating Allocation
Percentage of such Series with respect to such Monthly Period. Subject to
Sections 4.03(c) and 4.04, amounts not allocated to the Certificateholders'
Interest of any Series will be allocated to the Sellers' Interest.
(c) The first paragraph of Section 4.03(c) of the Agreement is hereby
amended and restated in its entirety as follows:
(c) On the earlier of (A) the second Business Day after the Date of
Processing and (B) the day on which the Servicer actually deposits any
Collections into the Collection Account, the Servicer will pay to the
Sellers (i) the Sellers' allocable portion of Collections of Finance Charge
Receivables (except for such Collections consisting of Interchange, to the
extent that the Sellers have retained their allocable portion thereof
pursuant to Section 4.03(a)) and (ii) the Sellers' allocable portion of
Collections of Principal Receivables; provided, however, that, in the case
of Collections of Principal Receivables allocated to the Sellers' Interest,
such amounts shall be paid to the Sellers only if the Sellers'
Participation Amount (determined after giving effect to any Principal
Receivables transferred to the Trust on such date) exceeds zero; and
provided, further, that in the case of any Shared Principal Collections
that would otherwise be paid to the Sellers pursuant to Section 4.04, such
amounts shall be paid to the Sellers only if the Sellers' Participation
Amount exceeds the Required Sellers' Participation Amount and the aggregate
amount of Principal Receivables in the Trust exceeds the Required Principal
Balance (in each case determined after giving effect to any Principal
Receivables transferred to the Trust on such date). The amount not paid to
the Sellers as a result of the provisos in the preceding sentence
("Unallocated Principal Collections") shall be deposited on each
Distribution Date in the Special Funding Account; provided, however, that
if any Series is in its Accumulation Period, Scheduled Amortization Period
or Early Amortization Period, any Unallocated Principal Collections on
deposit in the Collection Account shall be deemed to be Shared Principal
Collections and shall be allocated and distributed in accordance with
Section 4.04 and the terms of each Supplement.
Section 2.07. Amendment to Section 4.04 of the Agreement. Section 4.04 is
hereby amended and restated in its entirety as follows:
SECTION 4.04. Shared Principal Collections. On each Distribution Date,
(a) the Servicer shall allocate Shared Principal Collections to each
Series, pro rata, in proportion to the Principal Shortfalls, if any, with
respect to each Series and (b) the Servicer shall withdraw from the
Collection Account and pay to the Sellers an amount equal to the excess, if
any, of (x) the aggregate amount for all outstanding Series of Collections
of Principal Receivables which the related Supplements or this Agreement
specify are to be treated as "Shared Principal Collections" for such
Distribution Date over (y) the aggregate amount for all outstanding Series
which the related Supplements specify are "Principal Shortfalls" for such
Distribution Date; provided, however, that such amounts shall be paid to
the Sellers only if the Sellers' Participation Amount for such Distribution
Date (determined after giving effect to any Principal Receivables
transferred to the Trust on such date) exceeds zero; and provided, further,
that, if, on any Distribution Date, the Sellers' Participation Amount is
less than or equal to the Required Sellers' Participation Amount or the
aggregate amount of Principal Receivables is less than or equal to the
Required Principal Balance (in each case determined after giving effect to
any Principal Receivables transferred to the Trust on such date), the
Servicer will not distribute to the Sellers any Shared Principal
Collections or any Transfer Deposit Amounts or Adjustment Payments then on
deposit in the Collection Account that otherwise would be distributed to
the Sellers, but shall deposit such funds in the Special Funding Account.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. Ratification of Agreement. As amended by this Amendment, the
Agreement is in all respects ratified and confirmed and the Agreement as amended
by this Amendment shall be read, taken and construed as one and the same
instrument.
SECTION 3.02. Amendment. The Agreement may be amended from time to time
only if the conditions set forth in Section 13.01 of the Agreement are
satisfied.
SECTION 3.03. Counterparts. This Amendment may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be an original, but all of which shall constitute one and the same
instrument.
SECTION 3.04. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Seller, the Servicer and the Trustee have caused
this Amendment to be duly executed by their respective officers as of the day
and year first above written.
PROVIDIAN NATIONAL BANK,
Seller and Servicer,
by /s/ Xxxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
BANKERS TRUST COMPANY,
Trustee,
by /s/ Xxxxx Xxxxxx
--------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
